J'Accuse!

A state legislator from Iowa was charged with sex abuse in the third degree, a class “C” felony punishable by at most ten years in prison, life on so-called “special sentence” parole, and life on the sex offender registry. The crux of the allegation is that he had sex with his wife while she was hospitalized and allegedly without the ability to consent to sexual activity. He pleaded “Not Guilty.” What makes this case interesting from a legal perspective is not that a state senator was charged with sex abuse—sex abuse is the modern equivalent of red baiting. That someone has been accused of sex abuse in politics should not in itself be news. Accuse someone of sexual abuse and they are instantly radioactive politically, socially, economically, and emotionally. No one will go near them. Nixon and his political operatives would have loved the idea of falsely accusing his enemies of sex abuse because the mere allegation carried such a stigma that it was nearly impossible to refute without looking like a child-hating monster. There are no communist boogeyman around anymore to get rid of political enemies so enter the big bad sexual abuser to create heroes in white hats and villains in black hats. What makes the case interesting is that the State, not the defendant, sought a motion to change venue because it believes the defendant has, according to the Cedar Rapids Gazette, prejudiced the jury pool by interacting with the media. Oh how the worm has turned. Prosecutors are typically media darlings. While ethical rules typically forbid lawyers from engaging in extrajudicial speech about cases in which they are involved, there are no such ethical rules placed on police who regularly issue press releases and mug shots ballyhooing their great police work and naming the evil defendant. Law enforcement and prosecutors must know this taints the jury pool. But prosecutors do nothing to discourage it—in fact, the lack of action against extrajudicial speech by prosecutorial agents amounts to tacit approval of same. It is, as they say, the way things are. For this reason, there is almost always pretrial publicity prejudicial to defendants in high profile cases and I have never before seen the State seeking a change in venue. The standard for a change of venue is high. They are rarely granted in Iowa and the courts basically assume that jurors will see some pretrial publicity in high profile cases but also assume that they can be fair and impartial when directed by the court. But the other reason this is interesting from a legal perspective is that it betrays a well-known but unspoken prosecutorial tenet: prosecutors expect, or at least hope, that jurors arrive at the courthouse either neutral or leaning toward the prosecution. When a defendant moves to change venue, the argument is that s/he cannot get a fair and impartial jury who will presume innocence according to American jurisprudential norms and the instructions. The defense argument is that the jury pool is already tainted against him/her. If a jury pool is tainted against the prosecution and leaning toward innocence, isn’t that the way it ought to be? The jury is supposed to lean toward the defendant. In this case, a rare one where the defendant has access to the media and the prosecutor fears prejudice against the state, the worm has turned. But most defendants aren’t media darlings.